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Tort, Compensation, and Two Kinds of Justice

Following the horrific terrorist attacks of September 11, 2001, Congress moved swiftly to pass legislation that both protected potential tort defendants against crushing liability and created a fund to compensate those killed or injured by the terrorists. Although the Victim Compensation Fund does not provide the full recovery that a plaintiff might gain through a tort suit, it nonetheless reflects a tort law bent by allowing recovery of full economic loss.

This Article argues that the Fund confuses two kinds of justice. Corrective justice (herein, tort law) is concerned with repairing an inequality between parties that wrongful conduct has created. Distributive justice, on the other hand, considers broader questions about the proper and just allocation of goods within a society. Such questions are the province of government, not of individuals. The "Fund" is a fund in name only, because its source is general revenue. Thus, inasmuch as it is taxpayers, and not parties who have acted wrongfully, who are paying for the Fund, government cannot consider the needs of the victims of September 11th in isolation. Instead, it has a responsibility for ensuring that the needs of all citizens are considered. In short, payment should not attempt to substitute for tort law, under which the goal is restoration of the status quo before the harm occurred. The Fund does nod in the right direction, by counting most collateral source payouts against recovery, and limiting recovery for non-economic loss. But these measures do not achieve the broader accounting that distributive justice requires.

Once the Fund's confusion between distributive and corrective justice is laid bare, the troubling question remains: How should the victims of this tragedy be compensated? The consequences of a terrorist attack are the realization of a social, or shared, risk. The Article contends that a broad definition of social risk is needed, and that such a comprehensive understanding can help us to understand both the inappropriateness of such measures as the Fund and the strength (and limits) of claims based on the materialization of social risks. To make this point, the Article focuses on a class of injuries that everyone agrees is social - the risk of the spread of infectious disease from an unvaccinated population. It moves out from there to note similarities between this obvious case of social risk and misfortunes that are not usually thought of as shared, and concludes by stating that an expansive definition of social risk might yet emerge from the events of September 11th. Such a definition would underscore the reality that the victims of misfortune - including terrorist attacks - are all of us.